Prostitution in Australia
Prostitution in Australia is governed by state and territory laws, which vary considerably. Federal legislation also affects some aspects of sex work throughout Australia, and of Australian citizens abroad.
Though Australia is largely homogenous in its attitude to sex work, the legal responses of the nine jurisdictions have differed. Some of the differences have been due to political factors. Eastern Australian states and territories liberalised their laws in the late 20th century; but liberalisation has been restricted by upper houses of Parliament of several states, with legislation either defeated or extensively amended. New South Wales was the first state or territory to adopt a different model, decriminalising prostitution in 1979. This became a model for New Zealand and a failed attempt in Western Australia in 2008. Victoria and Queensland adopted different models, based on legalisation—Victoria in 1986 and Queensland in 1992. In the remaining states of Tasmania, South Australia and Western Australia, despite intense debate and many proposed legislative reforms there has been no change in the laws. The Australian Capital Territory adopted partial decriminalisation in 1992, and the Northern Territory allowed partial decriminalisation in 1992. In all jurisdictions the issue remains divisive, and in the three eastern states with regulated sex work there has been intermittent review. Much of the information in this article concerns heterosexual, not homosexual, sex work.
Sex work in Australia has operated differently depending on the period of time evaluated. For this reason discussion is divided into three distinct periods: convict, late colonial, and post-federation. Pre-colonial "prostitution" among Aboriginal peoples is not considered here, since it bore little resemblance to contemporary understanding of the term. The arrival of the Europeans changed this "wife exchange" system, once they started exchanging their European goods for sexual services from Aboriginal women. During the convict period, English common law applied, and dealt with brothel keeping, disorderly houses, and public nuisance. The late colonial period viewed prostitution as a public health issue, through the Contagious Diseases Acts. Since Federation in 1901, the emphasis has been on criminalising activities associated with prostitution. Although not explicitly prohibiting paid sex, the criminal law effectively produced a de facto prohibition.
Convict period 1788–1840Edit
Prostitution probably first appeared in Australia at the time of the First Fleet in 1788. Some of the women transported to Australia had previously worked in prostitution, while others chose the profession due to economic circumstances, and a severe imbalance of the sexes. While the 1822 Bigge Inquiry refers to brothels, these were mainly women working from their own homes.
Colonial period 1840–1901Edit
In the colonial period, prior to federation, Australia adopted the Contagious Diseases Acts of the United Kingdom between 1868 and 1879 in an attempt to control venereal disease in the military, requiring compulsory inspection of women suspected of prostitution, and could include incarceration in a lock hospital.
Federal period 1901–1970sEdit
After federation, criminal law was left in the hands of the states. But criminal law relating to prostitution only dates from around 1910. These laws did not make the act of prostitution illegal but did criminalise many activities related to prostitution. These laws were based on English laws passed between 1860 and 1885, and related to soliciting, age restrictions, brothel keeping, and leasing accommodation.
Since the 1970s there has been a change toward liberalisation of prostitution laws, though the actual approaches have varied. A May 1990 Australian Institute of Criminology report recommended that prostitution not be a criminal offence, since the laws were ineffective and endangered sex workers. A survey conducted in the early 2000s showed that 15.6% of Australian men aged 16–59 have paid for sex at least once in their life and 1.9% had done so in the past year. Men who had paid for sex were more likely than other men to smoke, to drink more alcohol, to have had a sexually transmitted infection (STI) or been tested for HIV, to have more sexual partners, to have first had vaginal intercourse before 16, and to have had heterosexual anal intercourse.
The NSW Wood Royal Commission into Police Corruption in 1995 recommended sex work be decriminalised to curb corruption and abuse of power.
Health and safety regulations and peer education have been effective at keeping STIs in the sex worker population at a low level, similar to the general population, and comparable amongst the states (Maginn 2013). Although there had been claims that sex workers were responsible for STI levels in mining communities, subsequent research has shown this not to be true.
Human trafficking in AustraliaEdit
The number of people trafficked into or within Australia is unknown. Estimates given to a 2004 parliamentary inquiry into sexual servitude in Australia ranged from 300 to 1,000 trafficked women annually.
The United Nations Office on Drugs and Crime (UNODC), Trafficking in persons: global patterns lists Australia as one of 21 trafficking destination countries in the high destination category.
Australia did not become a party to the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others when it was implemented in 1949. It has implemented in 1999 the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, to which it is a party. Australia has also ratified on 8 January 2007 the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which requires it to prohibit, besides other things, child prostitution. For the purpose of the Protocol, a child is any human being under the age of 18, unless an earlier age of majority is recognised by a country's law. In all Australian jurisdictions, the minimum age at which a person can engage in prostitution is 18 years, although it is argued against the age of consent, and it is always illegal to engage another in prostitution.
Australian Capital TerritoryEdit
Prior to passage of the 1992 Prostitution Act, prostitution policy in the Australian Capital Territory (ACT) consisted of "containment and control" under the Police Offences Act 1930 This prohibited keeping a brothel, persistently soliciting in a public place, or living on the earnings of prostitution. This law was not enforced. In 1991 a report entitled Prostitution in the ACT: Interim Report (Australian Capital Territory) was produced by the Select Committee on HIV, Illegal Drugs and Prostitution describing the then state of the industry, the shortcomings of the law, and the possible reforms available. Having considered the example of other Australian States that had adopted various other models, the committee recommended decriminalization, which occurred in the 1992 Prostitution Act. (Collaery 1991).
Following decriminalisation with the passage of The Prostitution Act 1992, a/k/a "Anna's Law," brothels are legal, but sex workers are required to register with the Office of Regulatory Services (ORS). The ORS also registers and regulates brothels and escort agencies. Sex workers may work privately but must work alone. Soliciting remains illegal (Section 19).
Legislative review 2011Edit
The legal situation was reviewed again with a Standing Committee on Justice and Community Safety's inquiry into the ACT Prostitution Act 1992, following the death of a 16-year-old woman, Janine Cameron, from a heroin overdose in a brothel in 2008.
The inquiry was established on 28 October 2010. The committee, chaired by ACT Liberal MLA Vicki Dunne, devised terms of reference that were as follows:
- the form and operation of the Act
- identifying regulatory options, including the desirability of requiring commercially operated brothels to maintain records of workers and relevant proof of age, to ensure that all sex workers are over the age of 18 years
- the adequacy of, and compliance with, occupational health and safety requirements for sex workers
- any links with criminal activity
- the extent to which unlicensed operators exist within the ACT
- other relevant matter
Written submissions were required by 26 February 2011 at which time 58 submissions had been received. Submissions to the committee included Scarlet Alliance. The Alliance requested changes that would allow sex workers to work together, the removal of registration (which is rarely complied with), and the repeal of sections 24 and 25 dealing with sexually transmitted diseases. The Eros Association, which represents the industry also called for removal of registration and for an expansion into residential areas. As in other States and Territories, conservative Christian groups such as the Australian Christian Lobby (ACL) called for criminalising clients.  Groups supporting this position included the Coalition Against Trafficking in Women Australia, and the Catholic Church has also opposed it. Sex workers argued against it. Ms Dunne stated that the committee would consider exit schemes; however Attorney-General Simon Corbell stated that it was unlikely there will be any substantive changes to the status quo. The committee completed its hearings on evidence on 13 July 2011, and issued its report in February 2012. The Government issued a formal response in June, stating it would follow most of the recommendations and that the inquiry had affirmed that sex work was a legitimate occupation.
In the October 2012 elections the opposition Liberals campaigned on a platform to oppose allowing more than one sex worker to use a premise in suburban areas but were not successful in preventing a further term of the ALP Green alliance.
Advocacy for sex workers in the ACT is undertaken by SWOP ACT (Sex Work Outreach Project).
New South WalesEdit
New South Wales (NSW) has the most liberal legislation on prostitution in Australia, with almost complete decriminalisation, and has been a model for other jurisdictions such as New Zealand. Brothels are legal in NSW under the Summary Offences Act 1988. The main activities that are illegal are:
- living on the earnings of a prostitute, although persons who own or manage a brothel are exempt
- causing or inducing prostitution (procuring: Crimes Act s.91A,B)
- using premises, or allowing premises to be used, for prostitution that are held out as being available for massage, sauna baths, steam baths, facilities for exercise, or photographic studios
- advertising that a premises is used for prostitution, or advertising for prostitutes
- soliciting for prostitution near or within view of a dwelling, school, church or hospital
- advertising premised used for prostitution
- engaging in child prostitution (Crimes Act s.91C-F)
NSW was founded in 1788 and was responsible for Tasmania until 1825, Victoria until 1851 and Queensland until 1859. It inherited much of the problems of port cities, penal colonies, and the gender imbalance of colonial life. Initially there was little specific legislation aimed at prostitution, but prostitutes could be charged under vagrancy provisions if their behaviour drew undue attention. In 1822 Commissioner Bigge reported stated there were 20 brothels in Sydney, and many women at the Parramatta Female Factory were involved in prostitution. The Prevention of Vagrancy Act 1835 was designed to deal with 'undesirables'.
The 1859 Select Committee into the Condition of the Working Classes of the Metropolis described widespread prostitution. Nineteenth century legislation included the Criminal Law Amendment Act 1883 and Police Offences Act 1901. Attempts to pass contagious diseases legislation were resisted, and unlike other States, legislative control was minimal till the general attack on 'vice' of the first decade of the twentieth century which resulted in the Police Offences Amendment Act 1908, and the Prisoners Detention Act. Street prostitution was controlled by the Vagrancy Act 1902 (sec. 4 [c]) enabling a woman to be arrested as a 'common prostitute'. This was strengthened by an amendment of the Police Offences (Amendment) Act 1908, which also prohibited living on the earnings.
Strengthening the lawsEdit
The Vagrancy Act was further strengthened in 1968, making it an offence to 'loiter for the purpose of prostitution' (sec. 4  [k]). These provisions were then incorporated into the Summary Offences Act 1970, s.28.
In the 1970s an active debate about the need for liberalisation appeared, spearheaded by feminists and libertarians, culminating under the Wran ALP government in the Prostitution Act 1979. Eventually NSW became a model for debates on liberalising prostitution laws. But almost immediately, community pressure started to build for additional safeguards, particularly in Darlinghurst (Perkins 1991), although police still utilised other legislation such as the Offences in Public Places Act 1979 for unruly behaviour. Eventually, this led to a subsequent partial recriminalisation of street work with the Prostitution (Amendment) Act 1983, of which s.8A stipulates that;
(1) A person in a public street shall not, near a dwelling, school, church or hospital, solicit another person for the purpose of prostitution …
(2) A person shall not, in a school, church or hospital, solicit another person for the purpose of prostitution.
This resulted in Darlinghurst street workers relocating (Perkins 1991).
Further decriminalisation of premises followed with the implementation of recommendations from the Select Committee of the Legislative Assembly Upon Prostitution (1983–86). Although the committee had recommended relaxing the soliciting laws, the new Greiner Liberal government tightened these provisions further in 1988 through the Summary Offences Act in response to community pressure.
The current regulatory framework is based on the Crimes Act 1900, Disorderly Houses Act 1943 (renamed Restricted Premises Act in 2002), Environmental Planning and Assessment Act 1979, and Summary Offences Act 1988. The suburbs of King's Cross in Sydney and Islington in Newcastle have been traditional centres of prostitution. New South Wales is the only Australian state that legalises street prostitution. But community groups in those locations have occasionally lobbied for re-criminalisation.
As promised in its 2011 election campaign, the Liberal Party sought review of the regulation of brothels. In September 2012, it issues a discussion paper on review of the regulations. It stated that the purpose was three-fold, the protection of residential amenity; protection of sex workers and safeguarding public health (Maginn 2013). Nevertheless, there is no evidence of a negative effect of brothels on the community.
Generally prostitution policy in NSW has been bipartisan. But in 2010 the Liberal (centre-right) opposition announced that it would make prostitution reform part of its campaign for the March 2011 State election. The plan would involve a new licensing authority, following revelations that the sex industry had been expanding and operating illegallly as well as in legal premises. The Liberals claimed that organised crime and coercion were part of the NSW brothel scene. The last reform was in 2007, with the Brothels Legislation Act. The Liberals were duly elected as the new government in that election.
Advocacy for sex workers in NSW is undertaken by SWOP NSW (Sex Workers Outreach Project).
Brothels are illegal in the Northern Territory under the Prostitution Regulation Act 2004. The Northern Territory Licensing Commission can license Northern Territory residents for a licence to operate an escort agency business. Street work is illegal, while sole operators are legal and un-regulated. Sex workers have protested against the fact that the NT is the only part of Australia where workers have to register with the police. As elsewhere in Australia any liberalisation is vigorously opposed by religious groups.
Unlike other parts of Australia, the Northern Territory remained largely Aboriginal for much longer, and Europeans were predominantly male. Inevitably this brought European males into close proximity with Aboriginal women. There has been much debate as to whether the hiring of Aboriginal women (Black Velvet) as domestic labour but also as sexual partners constituted prostitution or not. Certainly these inter-racial liaisons attracted much criticism. Once the Commonwealth took over the territory from South Australia in 1911, it saw its role as protecting the indigenous population, and there was considerable debate about employment standards and the practice of 'consorting'.
Pressure from reform came from women's groups such as Women Against Discrimination and Exploitation (WADE). (Bonney 1997) In 1992 the Prostitution Regulation Act reformed and consolidated the common law and statute law relating to prostitution. The first report of the Escort Agency Licensing Board in 1993 recommended further reform, but the Government did not accept this, feeling there would be widespread opposition to legalising brothels. The Attorney-General's Department conducted a review in 1996. A further review was subsequently conducted in 1998. In 2004 The Suppression of Brothels Act 1907 (SA) in its application to the Territory was repealed by the Prostitution Regulation Act. The NT Government has consistently rejected calls for legalisation of brothels.
Brothels are legal. They are licensed by the Prostitution Licensing Authority (PLA). The PLA reports to the Crime and Misconduct Commission (CMC), which reports to parliament. There are two types of sex work that are legal in Queensland:
- Private sex work: A single sex worker working alone. It is an offence for such a worker to solicit publicly. Advertising is permitted with restrictions on the wording.
- Sex work in a licensed brothel.
All other forms of sex work remain illegal, including more than one worker sharing a premise, street prostitution, unlicensed brothels or massage parlours used for sex work, and outcalls from licensed brothels. The CMC continues to oppose outcall services; although this is currently favoured by the PLA.
According to a 2009 report, only 10% of prostitution happens in the licensed brothels, the rest of 90% of prostitution remains either unregulated or illegal. There were 25 known legal brothels in 2009, and 75% of sex work involved outcall. There are continuing reports that an illegal sector continues to thrive.  In 2012 sex workers in Queensland won the right to rent motel and hotel rooms to work, under the Anti-Discrimination Act.  Economic circumstances continue to be a determinant of women seeking sex work.
Much emphasis was placed in colonial Queensland on the role of immigration and the indigenous population in introducing and sustaining prostitution, while organisations such as the Social Purity Society described what they interpreted as widespread female depravity. Concerns led to the Act for the Suppression of Contagious Diseases 1868 (31 Vict. No. 40), part of a widespread legislative attempt to control prostitution throughout the British Empire through incarceration in lock hospitals. Brothels were defined in section 231 of the Queensland Criminal Code in 1897, which explicitly defined 'bawdy houses' in 1901. A further act relating to venereal disease control was the Health Act Amendment Act 1911 (2 Geo. V. No. 26). Solicitation was an offence under Clause 132E, and could lead to a fine or imprisonment. Other measures included the long-standing vagrancy laws and local by-laws.
The Fitzgerald Report (Commission of Inquiry into "Possible Illegal Activities and Associated Police Misconduct") of 1989 led to widespread concern regarding the operation of the laws, and consequently a more specific inquiry (Criminal Justice Commission. Regulating morality? An inquiry into prostitution in Queensland) in 1991. This in turn resulted in two pieces of legislation, the Prostitution Laws Amendment Act 1992 and the Prostitution Act 1999.
The Crime and Misconduct Commission reported on the regulation of prostitution in 2004, and on outcall work in 2006. Five amendments were introduced between 1999 and 2010. In August 2009 the Prostitution and Other Acts Amendment Bill 2009 was introduced and assented to in September, becoming the Prostitution and Other Acts Amendment Act 2010 proclaimed in March 2011.
Brothels are illegal in South Australia, under the Criminal Law Consolidation Act 1935 and the Summary Offences Act 1953. Soliciting in public places, receiving money from the prostitution of another, and procuring are illegal, but the act of prostitution itself is not.
Despite the intentions of the founders, prostitution became identified early in the history of the colony, known as the 'social evil', and various government reports during the nineteenth century refer to estimates of the number of people working in prostitution. In 1842, within six years of the founding of the colony, it was reported that there were now "large numbers of females who are living by a life of prostitution in the city of Adelaide, out of all proportion to the respectable population".
The Police Act 1844 set penalties for prostitutes found in public houses or public places This was consistent with the vagrancy laws then operating throughout the British Empire and remained the effective legislation for most of the remainder of the century, although it had little effect despite harsher penalties enacted in 1863 and 1869. 
Following the scandal described by WT Stead in the UK, there was much discussion of the white slave trade in Adelaide, and with the formation of the Social Purity Society of South Australia in 1882 along similar lines to that in other countries, similar legislation to the UK Criminal Law Consolidation Amendment Act 1885 was enacted, making it an offence to procure the defilement of a female by fraud or threat (the 1885 Protection of Young Persons Act). Opinions were divided as to whether to address the issue of prostitution by social reform and 'prevention', or by legislation, and many debates were held concerning the need for licensing and regulation.
The Twentieth century saw the Suppression of Brothels Bill 1907, the Venereal Diseases Act of 1920, the Police Act 1936 and Police Offences Act 1953.
While current legislation is based on acts of parliament from the 1930s and 1950s, at least six unsuccessful attempts have been made to reform the laws, starting in 1980. In 1978 one of many inquires was launched. Parliament voted a select committee of inquiry in August, renewed following the 1979 election. The Evidence Act 1978 was amended to allow witness immunity.
The committee report (1980) recommended decriminalisation. Robin Millhouse's (former Liberal Attorney-General, but then a new LM and finally Democrat MLA) introduced (27 February 1980) a bill entitled "A Bill for an Act to give effect to the recommendations of the Select Committee of Inquiry into prostitution." It generated considerable opposition in the community and failed on a tied vote in the Assembly on 11 February 1981.
A number of issues kept sex work in the public eye during 1990 and 1991. The next development occurred on 8 February 1991 when Ian Gilfillan (Australian Democrat MLC 1982-3) stated he would introduce a decriminalisation private members bill. He did so on 10 April 1991 but it met opposition from groups such as the Uniting Church and it lapsed when parliament recessed for the winter. Although he introduced a similar bill on 21 August 1991 but on 29 April 1992 a motion passed that resulted in the bill being withdrawn in favour of a reference to the Social Development Committee, although little was achieved by the latter during this time.
Another bill came in 1993 and then Mark Brindal, a Liberal backbencher, produced a discussion paper on decriminalisation in November 1994, and on 9 February 1995 he introduced a private member's bill (Prostitution (Decriminalisation) Bill) to decriminalise prostitution and the Prostitution Regulation Bill on 23 February. He had been considered to have a better chance of success than the previous initiatives due to a "sunrise clause" which would set a time frame for a parliamentary debate prior to it coming into effect. He twice attempted to get decriminalisation bills passed, although his party opposed this. The Decriminalisation Bill was discharged on 6 July, and the Regulation Bill was defeated on 17 July.
Meanwhile, the Committee released its final report on 21 August 1996, but it was not till 25 March 1998 that Terry Cameron MLC (ALP 1995–2006) introduced a bill based on it. It had little support and lapsed when parliament recessed.
The Liberal Police Minister, Robert Brokenshire, introduced four Bills in 1999, the Prostitution (Licensing) Bill 1999, the Prostitution (Registration) Bill 1999, the Prostitution (Regulation) Bill 1999 and the Summary Offences (Prostitution) Bill 1999, to revise the laws and decriminalise prostitution. The Prostitution (Regulation) Bill was passed by the House of Assembly and received by the Legislative Council on 13 July 2000, but defeated on 17 July 2001, 12:7. The Bill was also supported by the Australian Democrats. The then Minister for the status of Women, Diana Laidlaw is said to have been moved to tears, and called her colleagues "gutless". Another MLC, Sandra Kanck (Australian Democrat 1993–2009) angrily stated that sex workers had been "thrown to the wolves by Parliament".
No further attempts to reform the law have been made for some time, however in 2010 a governing Labor backbencher and former minister, Stephanie Key, announced she would introduce a private members decriminalisation bill. Religious groups immediately organised opposition, although the opposition Liberals promised to consider it. Consultations with the blackmarket industry continued and in June 2011 she outlined her intended legislation to amend the Criminal Law Consolidation Act 1935 and the Summary Offences Act 1953 to ensure sex workers had the same industrial rights and responsibilities as other workers, that minors under the age of 18 years were not involved in or associated with sex work, preventing sex services premises from being established within 200 metres of schools, centres for children or places of worship, allowing local government to regulate public amenity, noise, signage and location in relation to sex services premises with more than three workers, promote safe sex education and practice by clients and sex workers, and enable sex workers to report criminal matters to the police like in a similar matter to other citizens, but not where workers could report victims of abuse for intervention assistance or men who sought out such young women as potential rapists or pedophiles.
She presented her proposals to the Caucus in September 2011, and tabled a motion on 24 November 2011 "That she have leave to introduce a Bill for an Act to decriminalise prostitution and regulate the sex work industry; to amend the Criminal Law Consolidation Act 1935, the Equal Opportunity Act 1984, the Fair Work Act 1994, the Summary Offences Act 1953 and the Workers Rehabilitation and Compensation Act 1986; and for other purpose".
The proposal was opposed by the Family First Party that had ten per cent of the votes in the Legislative Council, where Robert Brokenshire now opposed decriminalisation. However Police Commissioner, Mal Hyde, stated that the laws need to change. After considerable discussion and some compromises the Sex Work Reform Bill was introduced in May 2012, but was defeated by one vote, 20 to 19 in a conscience vote on second reading in November 2012.
In July 2015 Michelle Lensink Liberal MLC introduced an updated version of the Key-Gago legislation to the South Australian Legislative Council. Key and Lensink are collaborating across party lines to develop the legislation, sexual exploitation being the obvious potential in an industry like this, and its introduction to the Legislative Council is intended to test key elements of the legislation with important opponents in the upper house. Family First MLC Dennis Hood is a key opponent, arguing "I'm yet to have anyone say they want their daughter to be a prostitute". S
Prostitution has existed in Tasmania since its early days as a penal colony, when large numbers of convict women started arriving in the 1820s. Some of the women who were transported there already had criminal records related to prostitution. Prostitution was not so much a profession as a way of life for some women to make ends meet, particularly in a society in which there was a marked imbalance of gender, and convict women had no other means of income. Certainly brothels were established by the end of the 1820s, and records show girls as young as 12 were involved, while prostitution was associated with the female factory at Cascades. Nevertheless, the concept of 'fallen women' and division of women into 'good' and 'bad' was well established. In an attempt to produce some law and order the Vagrancy Act 1824 was introduced.
The Van Diemen's Land Asylum for the Protection of Destitute and Unfortunate Females (1848) was the first establishment for women so designated. Other attempts were the Penitent's Homes and Magdalen Asylums as rescue missions. In 1879 like other British colonies, Tasmania passed a Contagious Diseases Act (based on similar UK legislation of the 1860s), and established Lock Hospitals in an attempt to prevent venereal diseases amongst the armed forces, at the instigation of the Royal Navy. The Act ceased to operate in 1903 in the face of repeal movements. However, there was little attempt to suppress prostitution itself. What action there was against prostitution was mainly to keep it out of the public eye, using vagrancy laws. Otherwise the police ignored or colluded with prostitution.
More specific legislation dates from the early twentieth century, such as the Criminal Code Act 1924 (Crimes against Morality), and the Police Offences Act 1935. Efforts to reform legislation that was clearly ineffective began in the 1990s. Prior to the 2005 Act, soliciting by a prostitute, living on the earnings of a prostitute, keeping a disorderly house and letting a house to a tenant to use as a disorderly house were criminal offences. Sole workers and escort work, which was the main form of prostitution in the stat, were legal in Tasmania.
Reform was suggested by a government committee in 1999. In December 2002 Cabinet agreed to the drafting of legislation and in September 2003, approved the release of the draft Sex Industry Regulation Bill for consultation. The Bill proposed registration for operators of sexual services businesses.
Consultation with agencies, local government, interested persons and organisations occurred during 2004, resulting in the Sex Industry Regulation Bill 2004 being tabled in Parliament in June 2005. The Bill was supported by sex workers,
The Bill included offence provisions to ensure that Tasmania met its international obligations under the United Nations Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (signed by Australia in 2001.) It passed the House of Assembly and was tabled in the Legislative Council, where it was soon clear that it would not be passed, and was subsequently lost. It was replaced by the Sex Industry Offences Act 2005. Essentially, in response to protests the Government moved from a position of liberalising to one of further criminalising. The Act that was passed consolidated and clarified the existing law in relation to sex work by providing that it was legal to be a sex worker and provide sexual services but that it was illegal for a person to employ or otherwise control or profit from the work of individual sex workers. A review clause was included because of the uncertainty as to what the right way to proceed was. The Act commenced 1 January 2006.
Prostitution is legal, but it is illegal for a person to employ or otherwise control or profit from the work of individual sex workers. The Sex Industry Offences Act 2005 states that a person must not be a commercial operator of a sexual services business – that is, "someone who is not a self-employed sex worker and who, whether alone or with another person, operates, owns, manages or is in day-to-day control of a sexual services business". Street prostitution is illegal.
In 2008, the Justice Department conducted a review of the 2005 Act and received a number of submissions, in accordance with the provisions of the Act.  The report was tabled in June 2009 and expressed concerns about the effectiveness of the legislation, and suggested considering alternatives.
In June 2010, the Attorney-General Lara Giddings announced the Government was going to proceed with reform, using former Attorney-General Judy Jackson's 2003 draft legislation as a starting point. Giddings became the Premier in a minority ALP government in January 2011. However, her Attorney-general, former premier David Bartlett, did not favour this position but resigned shortly afterwards, being succeeded by Brian Wightman.
Wightman released a discussion paper in January 2012. This was opposed by religious conservative groups, progressive feminist groups as well as community organisations with concerns about the potential a legalised sex industry to bring organised crime to the state as has happened in states such as Victoria. This was seen when Whistleblowers Tasmania invited Sheila Jeffreys to conduct a series of talks including one at the Law Faculty at the University of Tasmania. The government invited submissions on the discussion paper until the end of March, and received responses from a wide range of individuals and groups. Wightman declined to refer the matter to the Law Reform Institute. After the review Wightman stated that there were no plans to make prostitution illegal "Legal issues around the sex industry can be emotive and personal for many people... The Government's top priority is the health and safety of sex workers and the Tasmanian community."
Victoria has a long history of debating prostitution, and was the first State to advocate regulation (as opposed to decriminalisation in New South Wales) rather than suppression of prostitution. Legislative approaches and public opinion in Victoria have gradually moved from advocating prohibition to control through regulation. While much of the activities surrounding prostitution were initially criminalised de jure, de facto the situation was one of toleration and containment of 'a necessary evil'.
Laws against prostitution existed from the founding of the State in 1851. The Vagrant Act 1852 included prostitution as riotous and indecent behaviour carrying a penalty of imprisonment for up to 12 months with the possibility of hard labour (Part II, s 3). The Conservation of Public Health Act 1878 required detention and medical examination of women suspected of being prostitutes,  corresponding to the Contagious Diseases Acts in other parts of the British Empire. This Act was not repealed till 1916, but was relatively ineffective either in controlling venereal diseases or prostitution.
The Crimes Act 1891 included specific prohibitions under PART II.—Suppression of Prostitution Procurement (ss 14–17) or detention (ss 18–21) of women either through inducements or violence to work as prostitutes was prohibited, with particular reference to underage girls. The Police Offences Act 1891 separated riotous and indecent behaviour from prostitution, making it a specific offence for a prostitute to 'importune' a person in public (s 7(2)).
Despite the laws, prostitution flourished, the block of Melbourne bounded by La Trobe Street, Spring Street, Lonsdale Street and Exhibition Street being the main red light district, and their madams were well known. An attempt at suppression in 1898 was ineffectual.
Early 20th centuryEdit
The Police offences Act 1907 prohibited 'brothel keeping', leasing a premise for the purpose of a brothel, and living off prostitution (ss 5, 6). Despite a number of additional legislative responses in the early years of the century, enforcement was patchy at best. Eventually amongst drug use scandals, brothels were shut down in the 1930s. All of these laws were explicitly directed against women, other than living on the avails.
In the 1970s brothels evaded prohibition by operating as 'massage parlours', leading to pressure to regulate them, since public attitudes were moving more towards regulation rather than prohibition. Initial attempts involved planning laws, when in 1975 the Melbourne Metropolitan Planning Scheme allowed for the operation of these parlours, even though they were known to be brothels, indeed the approval process required assurances that they would not be operated as such but this was not enforced. Community concerns were loudest in the traditional Melbourne stroll area of St. Kilda.
Late 20th century: From prohibition to regulationEdit
A Working Party was assembled in 1984 and led to the Planning (Brothel) Act 1984, as a new approach. Part of the political bargaining involved in passing the act was the promise to set up a wider inquiry. The inquiry was chaired by Marcia Neave, and reported in 1985. The recommendations to allow brothels to operate legally under regulation tried to avoid some of the issues that arose in New South Wales in 1979. It was hoped that regulation would allow better control of prostitution and at the same time reduce street work. The Government attempted to implement these in the Prostitution Regulation Act 1986. However, as in other States, the bill ran into considerable opposition in the upper house, was extensively amended, and consequently many parts were not proclaimed. This created an incoherent patchwork approach.
In 1992 a working group was set up by the Attorney-General, which resulted in the Prostitution Control Act 1994 (PCA)  (now known as the Sex Work Act 1994) This Act legalises and regulates the operations of brothels and escort agencies in Victoria. The difference between the two is that in the case of a brothel clients come to the place of business, which is subject to local council planning controls. In the case of an escort agency, clients phone the agency and arrange for a sex worker to come to their homes or motels. A brothel must obtain a permit from the local council (Section 21A). A brothel or escort agency must not advertise its services. (Section 18) Also, a brothel operator must not allow alcohol to be consumed at the brothel, (Section 21) nor apply for a liquor licence for the premises; nor may they allow a person under the age of 18 years to enter a brothel nor employ as a sex worker a person under 18 years of age, (Section 11A) though the age of consent in Victoria is 16 years.
Owner-operated brothels and private escort workers are not required to obtain a licence, but must be registered, and escorts from brothels are permitted. If only one or two sex workers run a brothel or escort agency, which does not employ other sex workers, they also do not need a licence, but are required to be registered. However, in all other cases, the operator of a brothel or escort agency must be licensed. The licensing process enables the licensing authority to check on any criminal history of an applicant. All new brothels are limited to having no more than six rooms. However, larger brothels which existed before the Act was passed were automatically given licences and continue to operate, though cannot increase the number of rooms. Sex workers employed by licensed brothels are not required to be licensed or registered. A person under 18 years is not permitted to be a sex worker (sections 5–7), and sex work must not be forced (section 8)
Amending Acts were passed in 1997 and 1999, and a report on the state of sex work in Victoria issued in 2002. More substantial amendments followed in 2008. The Consumer Affairs Legislation Amendment Act 2010 came into effect in November 2010. 'Prostitution' was replaced by 'Sex Work' throughout. The Act is now referred to as the Sex Work Act 1994. In 2011 further amendments were introduced, and assented to in December 2011. In addition to the Sex Work Act 1994, it amends the Confiscation Act 1997 and the Confiscation Amendment Act 2010. The stated purposes of the Act is to assign and clarify responsibility for the monitoring, investigation and enforcement of provisions of the Sex Work Act; to continue the ban on street prostitution.
Criticism of the effects of legislationEdit
In 1984 a Labor government legalised prostitution in Victoria and in their 2001 paper, "Legalising Prostitution Is Not The Answer: The Example Of Victoria, Australia", authors Jeffries and Mary Sullivan explained the legislative shift: "The prohibition of prostitution was seen to be ineffective against a highly visible massage parlour trade (a euphemism for brothels), increasing street prostitution, criminal involvement and drug use." The authors used the term "harm minimization" to describe the objective of the government at the time. When the oppositional Coalition government was elected in 1992 it decided to retain the legislation.
Sullivan and Jeffries also wrote in the 2001 report that the legislation change of 1984 created new problems:
Ongoing adjustments to legislation became necessary as state policy makers attempted to deal with a myriad of unforeseen issues that are not addressed by treating prostitution as commercial sex—child prostitution, trafficking of women, the exploitation and abuse of prostituted women by big business.
Furthermore, according to Sullivan and Jeffries:
- The legislation was designed to control the expansion of the sex industry, but instead, a "massive expansion" consequently occurred.
- The increased safety that was intended as an outcome did not eventuate, as the authors define sex work as "commercial sexual violence" (They refer to Evelina Giobbe, Director of the Commercial Sexual Exploitation Resource Institute, who argues that "prostitution is violence in and of itself".) and state that street-based sex workers "still suffer extreme violence on the streets".
- The aim to eliminate organised crime from the sex industry failed, as "Convicted criminals, fronted by supposedly more reputable people, remain in the business." The authors referred to a national study, conducted by the Australian Institute of Criminology, that estimated that Australian brothels earned A$1 million a week from illegal trading, while claiming, without a corresponding citation, that Victorians involved in the sex industry at the time were connected to crime syndicates worth A$30 million in Australia.
In their conclusion, the two authors wrote:
The reality is that prostitution cannot be made respectable. Legalisation does not make it so. Prostitution is an industry that arises from the historical subordination of women and the historical right of men to buy and exchange women simply as objects for sexual use. It thrives on poverty, drug abuse, the trafficking in vulnerable women and children... Legalisation compounds the harms of prostitution rather than relieving them. It is not the answer.
Premises-based sex workEdit
In November 2005, 95 licensed brothels existed in Victoria and a total of 2007 small owner-operators were registered in the state (Of these, 2003 were escort agents, two were brothels, and two were combined brothels and escort agents.) Of the 95 licensed brothels, 505 rooms existed and four rooms were located in small exempt brothels. Of 157 licensed prostitution service providers (i.e. operators), 47 were brothels, 23 were escort agencies and 87 were combined brothel-escort agencies. In March 2011, government data showed the existence of 98 licensed brothels in Victoria.
Based on the statements of William Albon, a representative of the Australian Adult Entertainment Industry (AAEI) (formerly the Australian Adult Entertainment Association (AAEA)), the number of illegal brothels in Victoria was estimated as 400 in 2008, with this estimation rising to 7,000 in 2011. In 2011 News.com.au published an estimate of 400 illegal brothels in the Melbourne metropolitan area—the article cited the news outlet's engagement with the Victorian State Government's Business Licensing Authority (BLA), the body responsible for registering owner-operated sex work businesses, but does not clarify from where or whom it obtained the estimate.
However, a 2006 study conducted by the University of Melbourne, Melbourne Sexual Health Centre and Victoria's Alfred Hospital, concluded that "The number of unlicensed brothels in Melbourne is much smaller than is generally believed." The study's results presented an estimate of between 13 and 70 unlicensed brothels in Melbourne, and the method used by the researchers involved a systematically analysis of the language used in advertisements from Melbourne newspapers published in July 2006 to identify sex industry venues that were indicated a likelihood of being unlicensed. A total of 438 advertisements, representing 174 separate establishments, were analysed.
Street sex workEdit
As of April 2014, street prostitution continues to be illegal in the state of Victoria and the most recent review process of the legislation in terms of street-based sex work occurred at the beginning of the 21st century and a final report was published by the Attorney General's Street Prostitution Advisory Group. However, the advisory group, founded in March 2001 by the Attorney-General at the time, Rob Hulls, solely examined the issues pertaining to the Port Phillip Local Government Area (LGA), as the suburb of St. Kilda, located in the City of Port Phillip, is a metropolitan location in which a significant level of street prostitution occurred—this remained the case in 2010. The Advisory Group consisted of residents, traders, street-based sex workers, welfare agencies, the City of Port Phillip, the State Government and Victoria Police, and released the final report after a 12-month period.
The Executive Summary of the report states:
The Advisory Group seeks to use law enforcement strategies to manage and, where possible, reduce street sex work in the City of Port Phillip to the greatest extent possible, while providing support and protection for residents, traders and workers. It proposes a harm minimisation approach to create opportunities for street sex workers to leave the industry and establish arrangements under which street sex work can be conducted without workers and residents suffering violence and abuse ... A two-year trial of tolerance areas and the establishment of street worker centres represents the foundation of the package proposed by the Advisory Group. Tolerance areas would provide defined geographic zones in which clients could pick-up street sex workers. The areas would be selected following rigorous scrutiny of appropriate locations by the City of Port Phillip, and a comprehensive process of community consultation. Tolerance areas would be created as a Local Priority Policing initiative and enshrined in an accord. Ongoing monitoring would be undertaken by the City of Port Phillip Local Safety Committee.
The concluding chapter of the report is entitled "The Way Forward" and lists four recommendations that were devised in light of the publication of the report. The four recommendations are listed as: a transparent process; an implementation plan; a community consultation; and the completion of an evaluation.
The June 2010 Victorian Recommendations of the Drug and Crime Prevention Committee were released nearly a decade later and, according to SA:
... if implemented, will criminalise, marginalise and further hurt migrant and non- migrant sex workers in Victoria; a group who already face the most overbearing regulatory structures and health policies pertaining to sex workers in Australia, and enjoy occupational health and safety worse than that of their criminalised colleagues (Western Australia) and far behind those in a decriminalised setting (New South Wales).
Alongside numerous other organisations and individuals, SA released its response to the recommendations of the Committee that were divided into two sections: 1. Opposition to all of the recommendations of the Victorian Parliamentary Inquiry 2. Recommendations from the Victorian Parliamentary Committee to the Commonwealth Government. The list of organisations in support of SA's response included Empower Foundation, Thailand; COSWAS, Collective of Sex Workers and Supporters, Taiwan; TAMPEP (European Network for HIV/STI Prevention and Health Promotion among Migrant Sex Workers); Sex Workers Outreach Project USA; Maria McMahon, Former Manager Sex Workers Outreach Project NSW and Sex Services Planning Advisory Panel, NSW Government; and Christine Harcourt, Researcher, Law & Sex Worker Health Project (LASH) for the University of NSW National Centre in HIV Epidemiology and Clinical Research and Faculty of Law and University of Melbourne Sexual Health Unit School of Population Health.
In terms of HIV, a 2010 journal article by the Scarlet Alliance (SA) organisation—based on research conducted in 2008—explained that it is illegal for a HIV-positive sex worker to engage in sex work in Victoria; although, it is not illegal for a HIV-positive client to hire the services of sex workers. Additionally, according to the exact wording of the SA document, "It is not a legal requirement to disclose HIV status prior to sexual intercourse; however, it is an offence to intentionally or recklessly infect someone with HIV."
Economics and genderEdit
In a 2005 study Mary Sullivan of the CATW stated that prostitution businesses made revenues of A$1,780 million in 2004/5 and the sex industry is growing at a rate of 4.6% annually (a rate higher than GDP). In the state of Victoria, there are 3.1 million instances of buying sex per year as compared with a total male population of 1.3 million men.
She stated that women make up 90% of the labour force in the industry in Victoria and earn, on average, A$400–$500 per week, do not receive holiday or sick pay, and work on average four 10-hour shifts per week. According to her report, there has been an overall growth in the industry since legalisation in the mid-1980s and that with increased competition between prostitution businesses, earnings have decreased; 20 years ago there were 3000 to 4000 women in prostitution as a whole, as of the report, there were 4500 women in the legal trade alone and the illegal trade was estimated to be 4 to 5 times larger.
Sullivan's study states that the sex industry is run by six large companies, which tend to control a wide array of prostitution operations, making self-employment very difficult; brothels take 50% to 60% of the money paid by clients and fine workers for refusing them. These legal businesses are commonly used by criminal elements as a front to launder money from human trafficking, underage prostitution, and other illicit enterprises.
Between 1995 and 1998, the Prostitution Control Board, a state government body, collected $991,000 Australian in prostitution licensing fees. In addition, hoteliers, casinos, taxi drivers, clothing manufacturers and retailers, newspapers, advertising agencies, and other logically-related businesses profit from prostitution in the state. One prostitution business in Australia is publicly traded on the Australian stock exchange.
Like other Australian states, Western Australia has had a long history of debates and attempts to reform prostitution laws. In the absence of reform, varying degrees of toleration have existed. The current legislation is the Prostitution Control Act 2000. Prostitution itself is legal, but many activities associated with it, such as pimping and running brothels, are illegal. Despite the fact that brothels are illegal, the state has a long history of tolerating and unofficially regulating them.
Prostitution in Western Australia has been intimately tied to the history of gold mining. In these areas a quasi-official arrangement existed between premise owners and the authorities. This was frequently justified as a harm reduction measure. Like other Australian colonies, legislation tended to be influence by developments in Britain. The Police Act 1892 was no different, establishing penalties for soliciting or vagrancy, while the Criminal Law Amendment Act 1892 dealt with procurement. Brothel keepers were prosecuted under the Municipal Institutions Act 1895, by which all municipalities had passed brothel suppression by-laws in 1905. Laws were further strengthened by Police Act Amendment Act 1902, and Criminal Code 1902. Despite this the brothels of Kalgoorlie were legendary. Prostitution was much debated in the media and parliament, but despite much lobbying, venereal diseases were not included in the Health Act 1911. The war years and the large number of military personnel in Perth and Fremantle concentrated attention on the issue, however during much of Western Australian history, control of prostitution was largely a police affair rather than a parliamentary one, as a process of 'containment'.
In addition to the above the following laws dealt with prostitution: Criminal Code (1913), Criminal Law Amendment Act 1988 Pt. 2, Law Reform (Decriminalization Of Sodomy) Act 1989, Acts Amendment (Evidence) Act 1991, Criminal Law Amendment Act (No 2) 1992, and the Prostitution Control Act 2000.
Prostitution Bills were also introduced in 2002 and 2003. The latter was a bill to regulate brothels and prostitution but was defeated in the upper house. This was followed by the Criminal Law Amendment (Simple Offences) Act 2004. Approaches reflected the ideology of the particular ruling party, as an attempt was made to end police 'containment' and make control a specific parliamentary responsibility.
Carpenter Government legislationEdit
Much of the debate on the subject under this government centred on the Prostitution Amendment Act 2008, introduced in 2007 by the Alan Carpenter's Australian Labor Party Government. Although it passed the upper house narrowly and received Royal Assent on 14 April 2008, it was not proclaimed before the 2008 state election, in which the Carpenter and the ALP narrowly lost power in September, and therefore remained inactive. The Act was based partly on the approach taken in 2003 in New Zealand (and which in turn was based on the approach in NSW). It would have decriminalised brothels and would have required certification (certification would not have applied to independent operators).
Therefore, the 2000 Act continued to be in force. Brothels existed in a legal grey area, although 'containment' had officially been disbanded, in Perth in 1958 and subsequently in Kalgoorlie.
Barnett Government proposalEdit
In opposition the ALP criticised the lack of action on prostitution by the coalition government. The debate had been reopened when the Liberal-National Barnett Government announced plans to regulate brothels in December 2009. More information was announced by Attorney-General Christian Porter in June 2010. Religious groups continued to oppose any liberalisation, as did elements within the government party although Porter denied this.
His critics stated that Porter "would accommodate the market demand for prostitution by setting up a system of licensed brothels in certain non-residential areas" and that people "should accept that prostitution will occur and legalise the trade, because we can never suppress it entirely" and that it is "like alcohol or gambling – saying it should be regulated rather than banned."
Porter challenged his critics to come up with a better model and rejected the Swedish example of only criminalising clients. These represent a change in thinking since an interview he gave in March 2009. However he followed through on a promise he made in early 2009 to clear the suburbs of sex work.
Porter released a ministerial statement and made a speech in the legislature on 25 November 2010, inviting public submissions. The plan was immediately rejected by religious groups.
By the time the consultation closed on 11 February 2011, 164 submissions were received, many repeating many of the arguments of the preceding years. This time Porter found himself criticised by both sides of the 2007 debate, for instance churches that supported the Coalition position in opposition, now criticised them, while sex worker groups that supported the Carpenter proposals continued to oppose coalition policies, as did health groups.
Prostitution Bill 2011Edit
On 14 June 2011 the Minister made a 'Green Bill' (draft legislation) available for public comment over a six-week period. Porter explained the purpose of the legislation thus: "The Prostitution Bill 2011 will not only ban brothels from residential areas but also ensure appropriate regulatory and licensing schemes are in place for those very limited non-residential areas where prostitution will be permitted and heavily regulated." A FAQ sheet was also developed. Publication of the Bill did not shift the debate—which remained deeply polarised, with any legalisation bitterly opposed by conservative religious groups—despite Porter's assurances that his government did not condone sex work. Sex Workers and health organisations remained just as committed to opposing the proposals.
Following consultation, the government announced a series of changes to the bill that represented compromises with its critics, and the changes were then introduced into parliament on 3 November 2011, where it received a first and second reading.
Sex workers continued to stand in opposition. Significantly, the opposition Labor Party opposed the bill, both political parties agreeing on the need to decriminalise the indoor market, but differing in approach. Since the government was in a minority, it required the support of several independent members to ensure passage through the Legislative Assembly. In practice, it proved difficult to muster sufficient public support, and the Bill did not attract sufficient support in parliament either. Porter left State politics in June 2012, being succeeded by Michael Mischin. Mischin admitted it would be unlikely that the bill would pass in that session. This proved to be true, as the legislature was prorogued on 30 January 2013, pending the general election on 9 March, and thus all bills lapsed.
The Barnett government was returned in that election with a clear majority, but stated it would not reintroduce the previous bill and that the subject was a low priority. Meanwhile, sex workers continue to push for decriminalisation. A division exists within the government party, with some members such as Nick Goiran threatening 'civil war'.
Christmas Island is a former British colony, which was administered as part of the Colony of Singapore. The laws of Singapore, including prostitution law, were based on British law. in 1958, the sovereignty of the island was transferred to Australia. The ‘laws of the Colony of Singapore’ continued to be the law of the territory. The Territories Law Reform Act 1992 decreed that Australian federal law and the state laws of Western Australia be applicable to the Indian Ocean Territories, of which Christmas Island is a part.
For the current situation see Western Australia.
Cocos (Keeling) IslandsEdit
Cocos (Keeling) Islands were, like Christmas Island, a British colony and part of the Colony of Singapore. After transfer of sovereignty to Australia in 1955, Singapore's colonial law was still in force on the islands until 1992. The Territories Law Reform Act 1992 made Australian federal law and the state laws of Western Australia applicable to the islands..
For the current situation see Western Australia.
For the current situation see New South Wales.
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